TERMS AND CONDITIONS OF CONTRACT OF THE FACTORIAL PLATFORM
Date of last amendment: 4 July 2023
1. OUR DATA
1.1 Welcome to the Factorial Platform. The use of the Factorial platform and the software available on it is authorised in accordance with these Terms and Conditions by EVERYDAY SOFTWARE, S.L., a Spanish company with registered office at C/ d’Àlaba, number 61, 5-2, 08005 - Barcelona (Spain), registered in the Commercial Registry of Barcelona, Volume 45613, Folio 156, Page 493653, 1st Registration and holder of Tax Identification No. B-66854530 (hereinafter, “Factorial”, “We", “Us”), with e-mail address: email@example.com.
1.2 For the purposes of these Terms and Conditions, “Factorial” means EVERYDAY SOFTWARE, S.L. and its subsidiaries. A subsidiary of EVERYDAY SOFTWARE, S.L. is any company, partnership, corporation or other type of entity controlled by or otherwise under the control of EVERYDAY SOFTWARE, S.L. or which, in accordance with Article 42 of the Spanish Commercial Code, forms part of the same group of undertakings (hereinafter, the “Subsidiaries”). The terms “controlled” and “control” refers to the ability to direct the management of the entity concerned.
By way of example but not limitation, the following are subsidiaries of EVERYDAY SOFTWARE, SL:
- FACTORIAL LTDA (Brazil), with registered office at AV Paulista 1439, Conj. 12, Bela Vista - CEP: 01311-926 São Paulo - Brazil. CNPJ: 44.259.221/0001-54
- FACTORIAL HR SA de CV (Mexico), with registered office at Colonia Lomas de Chapultepec III Sección, Delegación Miguel Hidalgo, 11000 Mexico City. RFC: FHR2206232G7.
- FACTORIAL HR LLC (USA), with registered office at 175 SW 7TH Street, Suite 2302, Miami FL 33130. TIN: 38-4196015.
2. BINDING TERMS AND CONDITIONS OF USE
2.3 Factorial, along with its Subsidiaries, reserves the right to periodically update these Terms and Conditions, as deemed suitable or necessary to comply with potential regulatory changes and to offer you a superior service. IT IS YOUR RESPONSIBILITY TO PERIODICALLY REVIEW THESE TERMS AND CONDITIONS. IF YOU CONTINUE TO USE THE PLATFORM AND/OR FACTORIAL SOFTWARE AFTER AN AMENDMENT TO THESE T&Cs, IT WILL BE CONSIDERED THAT YOU HAVE EXPRESSLY AND UNRESERVEDLY ACCEPTED THIS AMENDMENT. In the event that you do not accept a modification of these present Terms and Conditions, you will not be able to continue using the Platform or the Factorial software, and it will be considered that these present Terms and Conditions have been terminated.
2.4 YOU ARE NOT AUTHORISED TO USE THE PLATFORM AND THE SOFTWARE ACCESSIBLE THROUGH IT IF (a) YOU ARE UNDERAGE, DO NOT REACH THE LEGAL WORKING AGE, AND/OR DO NOT HAVE THE LEGAL CAPACITY TO CONTRACT OR (b) IF YOU HAVE BEEN PROHIBITED BY A JUDICIAL OR ADMINISTRATIVE AUTHORITY FROM ACCESSING AND/OR USING THIS TYPE OF SERVICES IN YOUR JURISDICTION, IN THE PLACE WHERE YOU LIVE OR IN THE PLACE WHERE YOU ACCESS THE PLATFORM.
2.5 THE USE OF THE PLATFORM AND THE SOFTWARE ACCESSIBLE THROUGH IT ALSO INVOLVES YOUR ACCEPTANCE OF ANY NOTICES, RULES OF USE AND INSTRUCTIONS THAT ARE MADE KNOWN TO YOU BY FACTORIAL AFTER THE ACCEPTANCE OF THESE PRESENT TERMS AND CONDITIONS.
2.6 THE CUSTOMER WARRANTS THAT THE PERSON WHO PROCEEDS TO THE SUBSCRIPTION OF THESE TERMS AND CONDITIONS ON BEHALF OF THE CUSTOMER DOES SO AS A LEGAL REPRESENTATIVE DULY AUTHORISED AND HAS SUFFICIENT LEGAL CAPACITY TO CONTRACT.
3. DESCRIPTION OF THE FACTORIAL SERVICES
3.1 The Factorial Platform is an online platform for Human Resources management (hereinafter referred to as “HR”) which is used by Customers in their capacity as employers and/or in their capacity as managers or advisors of employer organisations to optimise their HR processes by centralising and digitalising the administrative tasks related to their employees, as well as complying, as much as possible, with the related legal obligations (hereinafter, the "Services").
3.2 FACTORIAL IS NOT AN ADVISOR AND DOES NOT PROVIDE EMPLOYMENT OR LEGAL ADVICE OF ANY KIND. AS A CUSTOMER, YOU ARE RESPONSIBLE FOR ACCESSING AND USING THE PLATFORM (AS WELL AS THE FACTORIAL SOFTWARE), UNDER YOUR SOLE RESPONSIBILITY. ANY GUIDANCE THAT FACTORIAL MAY OFFER YOU REGARDING THE POSSIBLE USES OF THE PLATFORM DOES NOT CONSTITUTE ADVICE OR CONSULTATION ABOUT THE OBLIGATIONS THAT YOU HAVE, ACCORDING TO APPLICABLE LEGISLATION, IN EMPLOYMENT, TAX, SOCIAL SECURITY, OR ANY OTHER LEGAL AREA.
4.1 To access the Platform, you must provide certain information (i) as part of the registration process, or (ii) for the continued use of the Platform. You expressly agree and undertake to provide accurate, truthful, current and complete information as may be required when registering on the Platform and at any other time as may be required during your use of the Platform (the “Registration Data”). You commit to keeping your Registration Data updated.
4.2 Factorial reserves the right to refuse access and use of the Platform and other services if it detects or has reasonable grounds to believe that the Customer has provided inaccurate, false, or fraudulent data.
4.4 Upon registration, you will be asked to provide a username, an email address, and a password. YOU UNDERSTAND AND AGREE THAT YOU ARE RESPONSIBLE FOR (i) MAINTAINING THE CONFIDENTIALITY OF YOUR USERNAME AND PASSWORD, AND (ii) REGULARLY UPDATING AND CHECKING YOUR PASSWORD. As a result, you relieve Factorial of any liability and acknowledge and accept that Factorial is not responsible for any problem derived from or related to your account that is a consequence of not protecting or not taking reasonably suitable measures to protect your username and/or password. IF YOU KNOW OR SUSPECT THAT YOUR USER NAME AND/OR PASSWORD IS BEING USED IN AN UNAUTHORISED OR UNLAWFUL MANNER, REPORT IT TO FACTORIAL IMMEDIATELY AT THE FOLLOWING E-MAIL ADDRESS: firstname.lastname@example.org.
4.6 After completing the registration, the Customer should check their e-mail inbox and confirm the activation of the account to start using the Factorial Platform and the rest of the contracted services.
5. AUTHORISATION FOR USE
5.1 The Factorial Platform (or any Factorial software) is made available to you directly through Factorial and its subsidiaries or indirectly through distributors, partners or resellers subject to licence for its use. In this regard, the Customer understands that Factorial holds the ownership or has sufficient and necessary rights to assign the use of the Platform and/or other Factorial software. Under no circumstances can it be understood that any ownership right over the Platform has been granted to the Customer, and it cannot under any circumstances be likened to a sale.
5.2 Subject to and conditioned upon compliance with these Terms and Conditions, Factorial grants the customer, during the term, a non-exclusive, time-limited, non-transferable, and non-assignable license, which is revocable, to access and use the Platform for the Customer’s internal professional use and never for commercial purposes or resale to third parties (the “License”).
5.3 Factorial hereby reserves all rights to the Platform and/or Factorial software that have not been expressly assigned to the Customer under the License.
6. USE OF THE PLATFORM
6.1 The User may use the Platform as a web application, as well as through the compatible mobile application for iOS, Android, or other system compatible with the Platform, available for download through the major mobile application platforms.
6.2 The User must use the Platform only for the purpose that is proper in good faith, in accordance with current legislation, generally accepted morals and good customs, public order, and these Terms and Conditions. Similarly, the User must respect at all times the intellectual and industrial property rights owned by Factorial.
6.3 It is strictly forbidden to use the Platform, as well as the Factorial software and/or any of the contents of the Platform, for purposes or effects that are (or may be) illegal, prohibited, harmful to the rights and interests of third parties, as well as the performance of any action that may damage, disable, overload, or deteriorate the Platform and/or cause damage or alterations of any type not consented to by Factorial to the Platform, its contents, or other users. More specifically, for illustrative and not limiting purposes, the Customer shall not:
(a) Systematically retrieve data or other content from the Platform (including the collection of usernames and/or email addresses of Users by electronic or other means) to create or compile, directly or indirectly, a collection, compilation, database or directory, or to carry out data mining without Factorial’s prior written consent.
(b) Reproduce and extract data, information, and/or content from the Platform or the Platform itself for data mining purposes under the terms of Royal Decree 24/2021, unless prior express and written authorisation has been obtained from Factorial.
(c) Circumvent, disable or otherwise interfere with the security features of the Platform. The User may also not interfere with, interrupt, or unduly burden the Platform or the Services connected to the Platform.
(d) Access or attempt to access the account of any other user of the Platform.
(e) Deceive or defraud Factorial or other Users, especially in any attempt to learn sensitive information from the accounts or passwords of other Users, or to impersonate another User or person, or to use the name of another User.
(f) Misuse our Support Services or submit false reports of abuse or misconduct.
(g) Sell, share or otherwise transfer your profile or credentials.
(h) Use any information obtained from the Platform to coerce, intimidate, threaten, abuse, or harm another person, including other Users or Factorial employees.
(i) Upload or transmit (or attempt to upload or transmit) viruses, worms, Trojans, or any other malware that interferes or may interfere with any User’s use and enjoyment of the Platform.
(j) Use or provide the Services in any way that modifies, damages, interrupts, alters, or interferes with the use, features, functions, operation and/or maintenance of the Platform.
(k) Infringe Factorial’s Industrial and Intellectual Property rights, among others, rights over databases, software (source code and object code), interfaces and trademarks (whether registered or not).
6.4 In accordance with the above, Factorial reserves the right to deny access and use the Platform and other services, including the suspension or deletion of your account, whenever the User uses the Platform contrary to these Terms and Conditions. Ultimately, if necessary, Factorial also reserves the right to take legal action whenever it deems appropriate.
7. ACCESS AND SECURITY
7.1 To access and use the Platform, a compatible device is required, as well as a specific software and internet access, which may incur charges for you as a User, depending on your payment plan. Additionally, updates and new versions may need to be obtained occasionally. You expressly acknowledge and agree that Factorial is in no case responsible for:
a) The availability and/or speed of your internet connection, nor for the costs that your internet connection may entail.
b) The availability, compatibility, performance and renewal of the User’s software licenses necessary to use the Platform, as well as the cost of these licenses.
7.2 As hardware, software, and internet access are necessary to use the Platform, the ability to use the Platform may be affected by the performance of these elements. WE STRONGLY RECOMMEND THAT YOU USE A HIGH-SPEED INTERNET CONNECTION. YOU ACKNOWLEDGE AND ACCEPT THAT THESE TECHNICAL REQUIREMENTS, WHICH MAY BE MODIFIED FROM TIME TO TIME, ARE YOUR SOLE AND EXCLUSIVE RESPONSIBILITY, EXEMPTING FACTORIAL FROM ANY LIABILITY FOR THE INABILITY TO USE OR FOR AN UNSATISFACTORY USE OF THE PLATFORM DERIVED FROM THESE TECHNICAL REQUIREMENTS.
7.3 Please also note that if you choose to access the Platform via account authentication and verification services such as Google Sign in services, the terms and conditions of Google Ireland Ltd. may also apply. Similarly, if you choose to access via your Microsoft account, the terms and conditions of Microsoft may also apply.
7.4 Regardless of the authentication method used, the User must maintain confidentiality regarding their username and access password to their account and will not allow any person to use their username, password, or any other form of authorisation. The User should ensure to log out of their account on the Platform at the end of its use. The User is solely responsible for all activity conducted through their account, which includes any misuse of their username and password, as well as any damage caused as a result of such misuse. Factorial can trust that the supply of their username and password identifies and authenticates them as a User. Factorial HR will not be liable for any damages, costs, expenses or fees arising from the disclosure of your username, password or other information to any other person.
7.5 If the security or confidentiality of your username, password or any other form of authorisation is compromised, you should immediately notify email@example.com.
8.1 Factorial provides a Pricing Plan with different rates depending on the included features. If the Customer wishes to obtain a tailored quote, they can contact Factorial. The prices indicated are expressed according to the type of currency specified in the respective commercial proposal presented to the Customer and, if not specified, then based on the local currency, the price does not include any applicable taxes. These prices, unless expressly indicated otherwise, do not include the costs of any other additional Services (understood as Premium services) and annexes to the service purchased.
8.2 The available payment methods are as follows:
(a) Debit or credit bank card.
(b) Direct debit through the SEPA service.
(c) Any other payment method that our partners offer in those available regions and that Factorial accepts. The partners we work with can vary and be modified over time and according to the region.
(d) Other payment methods that Factorial might accept at its own discretion.
8.3 In the event that Factorial operates in a certain State in which the User has their domicile or residence or from which the User operates and accesses the Platform, Factorial may invoice the price through its Subsidiaries and the User will be obliged to pay the price to the relevant Factorial Subsidiary. Under these Terms and Conditions, You undertake to pay the price derived from the Services and the use of the Platform to Factorial or to the Factorial Subsidiary, as applicable.
8.4 Both the conditions and methods of payment of the price by the User will always be in accordance with the current regulations that apply.
8.5 During the term of these Terms and Conditions, Factorial may at any time, after notifying the User, change the conditions of these Terms, as well as the price. Any change in the essential contractual conditions and in the price must be communicated by Factorial to the User:
(a) For monthly plans: at least 45 calendar days in advance of the date on which the payment of the new price must be made.
(b) For annual plans: at least 60 calendar days in advance of the date on which the payment of the new price must be made.
If the User is not in agreement with the new price and makes this known to Factorial prior to the date when the new price must be paid, these Terms and Conditions will remain pending resolution until any of the notice periods (a) and (b) above expire, after which the User must automatically cease use of the Platform and delete and proceed to completely erase any Factorial software they may have.
In the event of contract termination where the Customer had one of the annual prepaid payment plans, Factorial will not refund the amounts already paid corresponding to the remaining period of the paid periodic fee by the Customer.
Interest. If 30 calendar days have passed from the Customer’s default without them having made the payment, Factorial will be entitled to:
(a) automatically increase the outstanding balance on any overdue and enforceable but unpaid invoice according to the greater of the following criteria: (i) the applicable legal interest rate plus seven (7) points or (ii) the interest rate applied by the European Central Bank in its latest refinancing operation plus ten (10) points.
(b) Without prejudice to the above, cumulatively and fully compatible, if the Customer does not pay the owed invoices within a period of thirty (30) calendar days, Factorial may also, at its sole discretion, suspend the Customer’s access to the Services and the Platform and/or terminate the relationship entirely or partially, without any liability and without prejudice to its right to claim all amounts owed by the Customer to Factorial, as applicable. Accordingly, THE USER ACKNOWLEDGES AND AGREES THAT THE OBLIGATION OF TIMELY PAYMENT OF THE PRICE IS A MATERIAL OBLIGATION WHOSE BREACH LEGITIMISES FACTORIAL TO UNILATERALLY TERMINATE THESE TERMS AND CONDITIONS.
(c) Notwithstanding the foregoing, the interest rates mentioned in the above points shall in no case exceed the legally permissible interest rate limits, depending on the region or territory of your billing account.
8.6 Free trial. The Customer may opt to try the Services and the Platform for a period that in no case will be longer than 15 calendar days from the enablement of the Services and until whichever occurs first: (a) the end of the free trial period for which they registered, or (b) the start date of the paid subscription to the Service according to the Pricing Plan (hereinafter, the “Free Demo”). At the end of the Free Demo period, the Customer can purchase additional products and Services not included in the Free Trial by selecting a Pricing Plan. THE CUSTOMER SHOULD BEAR IN MIND THAT ANY DATA ENTERED INTO THE SERVICES DURING THE FREE DEMO, AS WELL AS ANY CUSTOMISATION MADE DURING THAT PERIOD, WILL BE PERMANENTLY LOST UNLESS (A) A PAID SUBSCRIPTION TO THE SERVICES IS PURCHASED, OR (B) SUCH DATA IS EXPORTED BEFORE THE END OF THE FREE DEMO PERIOD.. In any case, Factorial exempts itself and is not responsible for the loss of any information or data as a result of the lack of export before the end of the Free Demo period.
8.7 REGULATION OF ACTIVE EMPLOYEE NUMBERS “SEATS” ON THE PLATFORM (applicable to NON-MONTHLY billing plans): In non-monthly billing plans, when the number of active employees “seats” changes, the price adjustment (and invoicing or crediting) will be calculated for the remaining subscription period. For example, if a “seat” is added when there are six months left of an annual subscription, Factorial will issue an invoice for the amount of 50% (6 months) of the price of an annual “seat”. “Seat” adjustments will be calculated and invoiced monthly. In any case, the number of “seats” billed will not be less than the number committed to by the customer in the contract/proposal.
8.8 REGULATION OF ACTIVE EMPLOYEE NUMBERS “SEATS” ON THE PLATFORM (applicable to MONTHLY billing plans): In monthly billing plans, the regulation of active employees “seats” when they are adjusted above the quantity agreed by the parties, will be carried out by Factorial twenty-four hours (24h) before issuing the invoice, taking as a basis the number of active users at that time, with Factorial then scheduling the amount of the next invoice according to that number of active seats. If you wish to adjust the seats below the agreed quantity, you must contact Factorial to make the adjustment.
9. INDUSTRIAL AND INTELLECTUAL PROPERTY RIGHTS
9.1 Factorial is the full and exclusive owner and/or holder of all the Industrial and Intellectual Property rights to the Services and to the Platform, as well as to its updates, improvements, revisions, extensions, modifications, adaptations, rectifications, translations or new versions (updates and upgrades) that Factorial may carry out at its sole discretion and voluntarily.
9.2 Without prejudice to the License for the use of the Platform, you acknowledge and accept that, through these Terms and Conditions, no ownership, usage rights, or any type of license are granted or recognised in your favour over the trade names, trademarks, logos, domain names or any other distinctive signs of Factorial, or over the Industrial and Intellectual Property rights of Factorial on the Platform and the Services.
9.3 Furthermore, Factorial has all the necessary permits, licenses, rights and authorisations to fully comply with its obligations under these Terms and Conditions, including the ownership or valid licenses of all Industrial and Intellectual Property rights (including, among others, patents, if any, registered trademarks, database rights, copyright, and design rights) that are necessary for the fulfilment of any of its obligations in accordance with these Terms and Conditions.
9.4 The User undertakes to respect and maintain the Industrial and Intellectual Property rights of the Platform and other services, as well as the supplementary documentation and information that Factorial makes available in accordance with these Terms and Conditions. More specifically, the User agrees and undertakes not to remove, hide or modify any legal notice and/or property rights reservation (including copyright and trademark notices) that are attached to or included in the Services and/or the Platform.
9.5 The Users will cooperate in good faith with Factorial in protecting the Industrial and Intellectual Property rights of the Platform and Services, or any other Industrial and Intellectual Property rights, and will immediately inform Factorial of any infringement of these rights of which the User has direct or indirect knowledge. If You have knowledge or reasonable suspicion that Factorial’s Industrial and Intellectual Property rights are being infringed, please contact Us at the following email address: firstname.lastname@example.org
9.6 The User acknowledges that the reproduction, modification, distribution, marketing, decompilation, disassembly, use of reverse engineering techniques or any other means to obtain the source code, transformation or publication of any unauthorised benchmark test results of any of the elements and utilities integrated within the Platform are prohibited and constitute an infringement of Factorial’s Industrial and Intellectual Property rights and, consequently, agrees not to carry out any of the aforementioned actions.
9.7 Factorial may request or collect, and/or the Customer may provide written suggestions, opinions or comments as part of the use of the Services and the Platform by the Customer and other Users (hereinafter, the “Feedback”). The Customer acknowledges and agrees that such Feedback will be considered property of Factorial and that Factorial will be the exclusive owner of all known or future Industrial and Intellectual Property rights that exist globally over the Feedback indefinitely, and will have the right to use the Feedback for any purpose, commercial or otherwise, without compensation to the provider of the Feedback. Also, Factorial reserves the right to include the Customer’s standard name and logo in its public client lists, press releases, and similar.
9.8 For the purposes of these Terms and Conditions:
(a) “Industrial and Intellectual Property” includes rights over inventions, patents and utility models, Intellectual Property, trademarks, trade names, logos and any other distinctive signs, currently registered or not anywhere in the world, owned by Factorial or legitimately used by Factorial, domain names, image rights, rights over commercial reputation or rights to claim for unfair competition, rights over designs (registered or not), rights over confidential information, trade and business secrets and any other industrial and/or intellectual property right, registered or not, including applications and renewals and/or extensions of these rights, as well as all rights or similar or equivalent forms of protection that exist now or may be recognised in the future anywhere in the world; and
(b) “Intellectual Property” means copyright and related rights to any original work or creation, in any medium, tangible or intangible, in analogue or digital format, including, without limitation, (i) texts, reports, manuals, presentations and any other written works (in any medium and through any technique or method); (ii) software (including the source code, user manuals and other preparatory materials), computer programs and databases; and (iii) descriptions, training materials, diagrams, support material, as well as the results of the transformation, modification, update, adaptation, new versions, or changes of these works or creations.
10. DATA PROTECTION AND CONFIDENTIALITY
10.2 In the event that Factorial must provide the Customer with services of a nature and characteristics different from those of the Factorial Platform, it may require the adaptation of the relationship between both parties in terms of privacy. In this regard, Factorial and the Customer will agree to prepare an agreement where the corresponding obligations, responsibilities and rights applicable to each of the parties in terms of personal data protection are regulated.
10.3 Each of the Parties represents and warrants to the other the compliance with all those legal obligations that correspond to it in terms of personal data protection. In this regard, each Party assumes responsibility for their own breaches and agrees to hold the other Party harmless for damages and losses that are a consequence of their own breaches in terms of privacy. By way of example, without limitation: failure to comply with the duty to inform about the processing of personal data provided for in Articles 13 and 14 of the GDPR; including in their respective informative clauses the means and the possibility for the data subjects to exercise their data protection rights.
10.4 Factorial and its subsidiaries can make use of usage and analytical information, as well as some statistical and aggregate data for the improvement and further development of the Platform and the rest of Factorial’s services. However, prior to the use of such data, Factorial carries out a data anonymisation process, converting them into aggregated, anonymous and statistical data, in such a way that they do not identify or make the Customer or their users identifiable (for example, price indices, price comparison evaluation services, etc.). Such data may derive from the Customer’s and their users’ data, combined with data from other customers.
10.5 Factorial and the Customer commit to keep the existence and the content of all the documentation and information that is facilitated, transmitted or disclosed regardless of the method, form or support used (hereinafter, “Confidential Information”), committing themselves not to make any disclosure to third parties or public communication without the prior written authorisation from the other party.
10.6 Confidential Information will be understood to refer, without limitation, to Customer data, its existence, its structure, promotion and sales plans, source and object codes of computer programs, systems, techniques, Industrial and Intellectual Property, technical and non-technical data, drawings, sketches, financial data, plans relating to new products, data related to customers or potential Customers, and any other information used in Factorial’s business realm.
10.7 The obligation of confidentiality will persist even after the termination, for any reason, of the contractual relationship between the parties.
10.8 Breach of the confidentiality obligation assumed in these Terms and Conditions, or return of the Confidential Information as set out above, will entitle either party to claim damages and losses that such breach may have caused in accordance with the limits established in clause eleven (11), fourth section, regarding Factorial’s liability.
10.9 The obligation of confidentiality shall not apply in cases where:
(a) after having been provided as Confidential Information, it became publicly accessible, without any breach of this clause having occurred in such circumstance; or
(b) it was legally in the possession of the receiving party at the time it was provided by the disclosing party, or was independently obtained by the former before being provided by the latter; or
(c) the receiving party can demonstrate that it obtained it legally in an unrestricted manner from any third party not subject to similar confidentiality obligations to the disclosing party; or
(d) it must be compulsorily provided by virtue of legal provision or by resolution validly issued by any competent administrative authority, court or jurisdictional body, legally empowered to compel such availability, provided that the receiving party so required immediately notifies the disclosing party of the receipt of such requirement, so that the disclosing party can assess whether there is a possibility to avoid the same or can provide any reasonably requested support by the receiving party.
11.1 In the extent allowed by applicable law, FACTORIAL PROVIDES THE PLATFORM “AS IS” AND “AS AVAILABLE” WITHOUT ANY PROMISE OR GUARANTEE, EXPRESS OR IMPLIED OF ANY KIND. MORE SPECIFICALLY, TO THE EXTENT ALLOWED BY APPLICABLE LAW, FACTORIAL DOES NOT GUARANTEE OR MAKE ANY REPRESENTATION REGARDING THE VALIDITY, ACCURACY, RELIABILITY OR AVAILABILITY OF THE PLATFORM OR ITS CONTENT. ALSO, TO THE EXTENT PERMITTED BY THE APPLICABLE LAW, FACTORIAL DOES NOT GUARANTEE OR ASSERT THAT THE PLATFORM OR ITS CONTENT IS SUITABLE OR APPROPRIATE FOR YOUR PURPOSE OR FOR A PARTICULAR END, OF SATISFACTORY QUALITY, NON-INFRINGING, FREE OF DEFECTS, CAPABLE OF OPERATING UNINTERRUPTED, FREE OF HARMFUL COMPONENTS OR ERRORS, FREE OF VIRUSES AND MALWARE, THAT THE USER’S USE OF THE PLATFORM COMPLIES WITH CURRENT REGULATIONS, PARTICULARLY IN LABOUR AND/OR SOCIAL SECURITY MATTERS, OR THAT ANY INFORMATION THAT THE USER TRANSMITS IN RELATION TO THE PLATFORM WILL BE SUCCESSFULLY, ACCURATELY OR SECURELY TRANSMITTED.
11.2 Factorial makes available to you the Platform and/or its Services through the internet 24 hours a day. However, Factorial is not liable and is released from any kind of responsibility if internet services are not available at any time for any reason.
11.4 IN CASE OF BREACH OF THESE TERMS AND CONDITIONS, FACTORIAL’S MAXIMUM AGGREGATE LIABILITY, ALSO AS A RESULT OF MULTIPLE HARMFUL EVENTS, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT PAID BY THE CUSTOMER TO FACTORIAL IN THE TWELVE (12) MONTHS PRIOR TO THE HARMFUL EVENT (OR IF LESS THAN TWELVE (12) MONTHS HAVE PASSED SINCE THE EFFECTIVENESS OF THESE TERMS AND CONDITIONS, TWELVE (12) TIMES THE CUSTOMER’S LAST MONTHLY PAYMENT TO FACTORIAL FOR THE USE OF THE PLATFORM). ACCORDING TO ARTICLE 1.152 OF THE SPANISH CIVIL CODE, THIS AMOUNT, WITH THE EXPRESS CONSENT OF THE USER, REPLACES ANY OTHER COMPENSATION FOR DAMAGES. IT SHALL BE THE RESPONSIBILITY OF THE CUSTOMER TO TAKE OUT ADEQUATE INSURANCE POLICIES TO COVER ANY DAMAGES THAT MAY EXCEED THE AFOREMENTIONED MAXIMUM LIABILITY LIMIT.
11.5 TO THE EXTENT PERMITTED BY LAW, FACTORIAL SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, MORAL DAMAGES, SPECIAL, EXEMPLARY, PUNITIVE DAMAGES, OR LOST PROFITS THAT IMPAIR THE CONTINUITY, AVAILABILITY, AND PROPER FUNCTIONING OF THE PLATFORM AND OTHER SERVICES, EVEN IF FACTORIAL HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY REGARDLESS OF THE THEORY OR BASIS OF THE ALLEGED LIABILITY, WHETHER FRAUD, MISREPRESENTATION OR INACCURATE INFORMATION PROVIDED, BREACH OF CONTRACT, NEGLIGENCE, PERSONAL INJURY, PRODUCT DEFECTS, INFRINGEMENT OR ANY OTHER CAUSE. TO THE EXTENT PERMITTED BY LAW, THIS LIMITATION AND DISCLAIMER OF LIABILITY SHALL ALSO APPLY TO CLAIMS AND/OR ACTIONS THAT YOU MAY MAKE AND/OR BRING AGAINST ANY THIRD PARTY, TO THE EXTENT THAT IT WOULD REQUIRE FACTORIAL TO INDEMNIFY SUCH THIRD PARTY. YOU ACKNOWLEDGE AND ACCEPT THAT THE TOTAL LIABILITY OF FACTORIAL TOWARDS YOU, ON ACCOUNT OF THE SERVICES AND/OR THE PLATFORM, AS ESTABLISHED IN THESE TERMS AND CONDITIONS, WILL NOT UNDER ANY CIRCUMSTANCES EXCEED THE AMOUNT PROVIDED FOR IN THE PREVIOUS CLAUSE.
11.6 No clause and/or information, whether oral or written, shall be deemed to alter this disclaimer of warranties by Factorial in relation to the Service and/or the Platform, or to create any type of warranty on the part of Factorial.
11.7 In addition, Factorial will not be liable to the Customer for any detrimental event unless the Customer has notified their claim in writing to Factorial, within a period of twenty (20) calendar days from the date on which the Customer became aware of it.
11.8 THE CUSTOMER AND USERS ASSUME ALL RESPONSIBILITIES AND RISKS RELATED TO THEIR USE OF THE SERVICES AND THE PLATFORM. IF YOU DO NOT WISH TO ASSUME SUCH RISKS AND RESPONSIBILITIES, YOUR ONLY RECOURSE AGAINST FACTORIAL IS TO STOP USING THE PLATFORM AND THE SERVICES.
11.9 This provision is understood without prejudice to the cases in which liability cannot be excluded or limited due to the mandatory provisions of the applicable legislation.
Customer’s and User’s Liability
11.10 Similarly, the Customer, as well as any User who uses the Platform, undertake to indemnify, defend and hold Factorial harmless for all losses, liabilities, damages, claims (including possible legal fees, reasonable attorney and solicitor fees and court costs), arising out of or in connection with: (i) any breach or alleged breach of these Terms and Conditions by the Customer or their Users; (ii) the violation by the Customer or their Users of any Law and/or the rights of a third party affecting Factorial; (iii) the failure of the Customer or their Users to install timely and complete any updates, enhancements or patches of any software provided by Factorial that is not authorised by them; and (iv) claims related to the Customer’s data and/or claims related to any data transferred by the Customer to third-party applications, and that this poses a damage to Factorial or for them.
11.11 In addition, the Customer’s or User’s non-compliance with these Terms and Conditions, especially regarding a violation of Factorial’s Industrial and Intellectual Property rights or any incident related to the price or payment for the use of the Platform or other services, may result in the immediate adoption by Factorial of any other actions that might correspond to them, possibly leading to the termination of the Licence or any other right granted to the Customer or User, without prior notice, and without this giving the Customer the right to claim compensation for damages of any kind.
11.12 The provisions of this clause shall survive the termination of the contractual relationship between the Customer and Factorial.
12. LINKS AND RESOURCES
12.2 THE INCLUSION OF LINKS TO OTHER THIRD PARTY SITES AND RESOURCES DOES NOT IMPLY ANY RELATIONSHIP OR ASSOCIATION BETWEEN FACTORIAL AND THE OWNER OF THE LINKED SITES, NOR ANY ENDORSEMENT BY FACTORIAL OF SUCH SITES.
12.3 ACCORDINGLY, FACTORIAL ASSUMES NO LIABILITY WHATSOEVER, WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL, FOR DAMAGES AND/OR LOSSES THAT MAY ARISE FROM ACTS OF THIRD PARTIES SUCH AS ACCESS, MAINTENANCE, USE, QUALITY, LAWFULNESS, RELIABILITY AND UTILITY OF THE CONTENTS, INFORMATION, COMMUNICATIONS, OPINIONS, STATEMENTS, PRODUCTS AND/OR SERVICES AVAILABLE OR OFFERED ON THE WEBSITES.
12.4 Furthermore, if Users become aware that activities carried out through these third-party websites are illegal or contravene morality and/or public order, they must immediately report this to Factorial in order for the access link to them to be disabled.
12.5 Factorial reserves the right to remove all links to third-party sites from its website and the Platform at its discretion at any time.
13. INTEGRATIONS AND PARTNERS
13.1 The Factorial Platform facilitates data exchange with third-party systems (hereinafter, “Integrations”). All such Integrations are provided under the sole responsibility of these third parties or external suppliers over whom Factorial has no direction or control, regardless of whether they are invoiced by the third party or by Factorial directly. The scope of the service provided by these and the necessary instructions for configuring the integration can be provided on the Platform, as well as on the external supplier’s website.
13.3 More specifically, for those services provided by integrations that are part of regulated sectors such as those provided by Factorial’s collaborator, Swan, which consist of typical banking sector services, the Customer understands that, despite contracting with said collaborator, Factorial remains a third party in relation to the direct contractual relationship between the Collaborator and the Customer. If the Customer or their Users wish to access their Terms and Conditions they should go to their website or request them directly from them.
13.4 In this sense, and without this being understood exhaustively, any banking/payment services that involves the opening and maintenance of electronic money account or payment account opened with Swan, or any other opening and maintenance of bank accounts by other collaborators, the use of payment services, including payment by transfer or credit card should be considered an exclusive contractual relationship between the Customer and the third collaborator and, therefore, the specific Terms and Conditions of the third collaborator will apply. Factorial guarantees its collaborators and its Customers and Users that in these types of collaborations it operates in strict compliance with the regulations relating to its own activity and, if necessary, will apply in conjunction with the third collaborator all the necessary technical and organisational security measures to prevent the Customer or their Users from confusing the functions performed by Factorial.
13.5 In the same vein, Factorial may offer its Customers the possibility of contracting with Factorial collaborators for online or offline services of advice and/or administrative management of labour documents, such as payroll management or other employee documentation. The Customer understands that such collaborator will be directly responsible for any incidents related to the provision of these services, and that Factorial has no power of direction or control over the collaborator’s services. FACTORIAL WILL SUPPORT THE CUSTOMER IN EVERYTHING RELATED TO ITS PLATFORM. IN NO CASE WILL FACTORIAL BE RESPONSIBLE FOR PROVIDING ADVICE OR SUPPORT TO THE CUSTOMER OR THEIR USERS REGARDING THE SERVICES PROVIDED BY THE COLLABORATOR, OF WHICH THE COLLABORATOR WILL BE SOLELY RESPONSIBLE AND SHOULD INFORM THE CUSTOMER OF THEIR OWN TERMS AND CONDITIONS AND SIGN WITH THE CUSTOMER ALL DOCUMENTS AND/OR CONTRACTS THAT ARE NECESSARY TO REGULATE THIS RELATIONSHIP. FACTORIAL WILL FORWARD QUERIES RELATED TO THE COLLABORATOR’S SERVICES DIRECTLY TO THE COLLABORATOR, WHO IS COMMITTED TO PROVIDING A QUICK AND EFFICIENT RESPONSE TO THE CUSTOMER.
13.6 The User should read the terms and conditions of use and privacy policies of third parties or third-party providers to learn how their personal data and other relevant information is collected and processed.
13.7 FACTORIAL HAS NO CONTROL OR RESPONSIBILITY OVER THIRD-PARTY INTEGRATIONS AND, AS A RESULT, DOES NOT ASSUME ANY RESPONSIBILITY OR WARRANTY FOR THIRD-PARTY INTEGRATIONS THAT CUSTOMERS DECIDE TO CONTRACT.
13.8 THE EXISTENCE OF INTEGRATIONS DOES NOT IMPLY THAT THERE IS A RELATIONSHIP OR ASSOCIATION OF ANY KIND BETWEEN FACTORIAL AND THE THIRD-PARTY OWNER OF THE SYSTEM THAT INTEGRATES WITH THE PLATFORM. FACTORIAL DISCLAIMS ANY RESPONSIBILITY ARISING FROM THE INTEGRATIONS, PARTICULARLY REGARDING THE ACCURACY, RELIABILITY AND SECURITY OF THE INTEGRATIONS.
14.1 Factorial reserves the right to amend these Terms and Conditions to adapt them to any changes or new regulations, for technical reasons, changes in the Services offered by Factorial, or strategic business decisions. Amendments to these Terms and Conditions will be published in the same manner as they appear here or through any type of communication directed to the User.
14.2 In any case, access and use of the Platform and Services after the amendments or changes come into effect constitutes acceptance of the new Terms and Conditions. Conversely, if the User does not agree with the changes to these Terms and Conditions, they must immediately stop using the Platform and the Services.
15. DURATION OF THE SERVICE
15.1 These Terms and Conditions have an indefinite duration from their acceptance, unless a specific contract of a fixed duration has been agreed upon between Factorial and the Customer.
15.2 Notwithstanding the termination causes provided in these Terms and Conditions, if the agreement is of an indefinite duration, the Customer may, at any time and without any reason, request the termination of the contract, simply by sending a written communication to Factorial, sent via email to the address email@example.com.
15.3 If the agreement between the Customer and Factorial for the Services has a fixed duration, the Customer must inform Factorial in writing of their intention to terminate the contract with a minimum notice of:
(a) 15 calendar days before the end of the monthly subscription (for monthly plans only). During this notice period, the customer will be responsible for paying the full corresponding monthly billing cycle without any proportional adjustment.
(b) 30 calendar days before the end of the fixed-term contract for the annual plan or any other non-monthly plan.
15.4 To the fullest extent permitted by law, early termination of the contract will not entitle the Customer to a refund of the sum corresponding to the unused part of the annual or monthly fee (pro-rata).
16.1 The User may contact Factorial at the above address or by email at firstname.lastname@example.org if the device they are connecting from has a properly configured and operational e-mail programme.
17. ACCESS TO OUR TERMS AND CONDITIONS IN OTHER LANGUAGES
17.1 Factorial focuses its efforts on providing the best possible service to its Users. Therefore, Factorial makes these Terms and Conditions available in different languages. Factorial does not guarantee that these Terms and Conditions are available in all languages or in a specific language that the User may require.
18. ASSIGNMENT OF THESE TERMS AND CONDITIONS
18.1 Factorial may assign, in whole or in part, its rights and obligations under these Terms and Conditions to any of its Subsidiaries at any time without the need for the User’s consent.
18.2 The User may only assign these Terms and Conditions to any subsidiary or company within their group of undertakings and/or third party with the prior express written consent of Factorial. The assignee in question must also be authorised in advance by Factorial. The assignment of any rights and obligations arising from these Terms and Conditions by the User without the prior authorisation of Factorial, as expressed, will entitle Factorial, at its discretion, to terminate these Terms and Conditions immediately and without prior notice, and to terminate the User’s access to the Platform without the Collaborator having the right to claim compensation for damages and losses for this reason.
19. APPLICABLE LAW AND JURISDICTION
19.1 These Terms and Conditions will be governed and interpreted in accordance with the common law rules of Spanish law.
19.2 For any matters that may arise from the interpretation, fulfilment and execution of these Terms and Conditions, the User and Factorial submit to the jurisdiction and competence of the Courts and Tribunals of the city of Barcelona, expressly waiving any other jurisdiction that may correspond to them by law, unless the applicable legislation provides otherwise. Notwithstanding the above, prior to the filing of legal actions before the Courts and Tribunals, both parties will make their best efforts for a maximum period of 15 working days to reach an amicable solution to the dispute. If the aforementioned period has elapsed and the dispute persists, Factorial and/or the User will be free to enforce their rights before the Courts and Tribunals under the terms agreed in this clause.
20.1 Waiver of Rights. The fact that Factorial does not enforce any of the provisions of these Terms and Conditions at any given time, or the fact that Factorial does not demand at any given time the fulfilment of any of the provisions of these Terms and Conditions shall not be interpreted in any case as a present or future waiver of such provisions, nor will it in any way affect Factorial’s right to enforce such provision thereafter. Factorial’s failure to exercise a right does not imply waiver of it. Factorial’s express waiver of any provision, condition or requirement of these Terms and Conditions will not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
20.2 Money Laundering. In compliance with Spanish regulations on the prevention of money laundering (Law no. 10/2010, Royal Decree no. 304/2014), Factorial must gather the documentation proving the identification of the Customer, whether a natural or legal person, with the actual owner of the company or legal structure needing to be identified in the latter case. The Customer assumes the commitment to provide the proof documentation that Factorial requires for these purposes, guaranteeing the validity, accuracy, completeness and reliability of the information, data and documents made available to Factorial, even if they come from third parties.
20.3 Entire Agreement. These Terms and Conditions and, where applicable, their successive amendments form a single legal body, which is the only valid agreement between Factorial and the User. Accordingly, any agreement, contract, undertaking, preliminary treatment or communication, oral or written, prior to these Terms and Conditions that is not expressly referred to in them is hereby null and void and of no value.
In the event of any conflict or discrepancy between the different language versions of the terms and conditions, the Spanish version shall prevail and be deemed binding.
20.4 Severability. When by judicial provision, decision or binding order of any authority or of any other nature, any of the non-essential provisions of these Terms and Conditions is declared invalid or ineffective, totally or partially, such invalidity or inefficacy will not extend to the rest of the provisions here provided, which will remain in force and continue to be fully effective. Factorial and the User agree to replace any clause that became invalid or ineffective with a valid and effective one, trying to make the effect of the latter as similar as possible to the former.
20.5 The headings of each provision of these Terms and Conditions are for reference purposes only and do not affect the meaning and/or interpretation of the Terms and Conditions.